SCOTUS: Offensive Trademarks Protected by Freedom of Speech

In a decision released on June 19, 2017, the Supreme Court of the United States ruled that s. 2(a) of the Lanham Act, the act that regulates a national system of trademark registration, was unconstitutional. The provision states that the Patent and Trademark Office (“PTO”) cannot refuse to register any trademark, unless it consists of “matter which may disparage or falsely suggest a connection with persons, living or dead, institutions, beliefs, or national symbols, or bring them into contempt, or disrepute.” The case concerned an Asian-American band that sought to register their band name — The Slants — as a trademark. ‘Slant’ is a familiar racial slur used against individuals of Asian decent, however the band argued that they chose the name in an effort to reclaim the word, and thereby undermine its discriminatory connotations. Nevertheless, the PTO refused to register the band’s name, citing that its derogatory nature contravened the 2(a) provision.

The Court ruled that the provision infringed the First Amendment of the US Constitution, which protects free speech. The case, known as Matal v Tam (“Tam”), establishes that the government cannot restrict offensive speech, even if it may be seen as demeaning to a group of people. Denying The Slants the ability to trademark their name was held to be unconstitutional viewpoint discrimination. In other words, it is unconstitutional to restrict speech based on a viewpoint that it expresses, whether or not that viewpoint is racist or otherwise offensive. Tam signals a strong and sweeping interpretation of the First Amendment, allowing for an almost unfettered freedom of speech. The opinion penned by Justice Alito states that the robustness of the First Amendment lies in the principle that no matter how offensive we find certain speech, and the viewpoints they espouse, they are still protected as free speech. In a concurring opinion, Justice Kennedy wrote that allowing the government to restrict speech on the basis of it being offensive to a portion of the public sets the stage for restricting the speech of minority groups and dissenters. The Court was unanimous in concluding that the free speech clause protects offensive private speech, and that The Slants should be entitled to register their trademark.

In addition, the Court held that trademarks are private speech, despite being maintained by a federal registry. This is an important distinction, since government speech does not benefit from the free speech clause and must remain viewpoint neutral.

The case was watched closely by the Washington Redskins, an American football team that had their trademark protections revoked in 2014. ‘Redskins’ is widely considered to be offensive to Native Americans. The context of the ‘The Slants’ and the ‘Redskins’ vastly differs, in so far as the former is a name that is being adopted precisely by the individuals it is meant to disparage, whereas the latter is arguably not an act of reclamation nor subversion of a traditionally offensive term. However, the Redskins are likely to benefit from this decision, as they can now argue that a trademark over their name is protected by the free speech clause, despite it being offensive.

This blog post was written by a CCLA summer student. Views expressed do not necessarily reflect the view of the CCLA.